How to keep sexual assault cases on track

Canadian Lawyer by Karen Busby 20 March 2017

Canada’s substantive and procedural sexual assault laws are pretty strong on the books. Consent must be affirmative, contemporaneous and continuous. Mistaken belief in consent must have an air of reality. Sexual history is presumptively inadmissible. Personal records are rarely relevant. Yet only one in 10 sexually assaulted women makes a report to the police and only one out of 10 of these complaints will result in a conviction.

With disheartening regularity, new stories appear about sexual assault cases going off the rails. Why does this happen and what can be done about it?

A vital first step is to ensure that complainants have access to advisors in order to make informed decisions about whether to participate in criminal justice processes and what to expect if they do. Contrary to popular understanding, complainants must know that they may be questioned about their sex life. Researchers consistently demonstrate that at least some defence counsel cross-examine complainants about their sexual history without making an application to introduce this evidence. Often, neither the Crown nor the presiding judge objects to the evidence. The practice is justified as expedient. Comprehensive case law reviews also reveal that at least some judges still misunderstand that sexual history evidence is categorically or presumptively inadmissible. In consequence, sexual history evidence is admitted in many cases where it ought not to have been.

Complainants need to realize that the defendant and his lawyer will likely search through social media for pre- or post-event contact between the complainant and the defendant or with her friends and family. They’re looking for anything that supports, however tenuously, inconsistent stories, collusion, fabrication, failure to express distress or to complain or motive for reporting.

Complainants also need to know that traditional media interviews can become defence fodder. If the story sounds the same every time, the defendant will argue that it must have been rehearsed and memorized. If it sounds different, the complainant’s memory must be faulty. If details are omitted, she must have been hiding something — even though the longest media interview is far shorter than the shortest cross-examination. If she does not convey her story in a tone that evokes empathy, the complainant is portrayed as an ex with an axe to grind or, worse, an activist. But if she comes across as broken, she may be too damaged to be a reliable witness. In fact, the paradox of the ideal victim is present every time she tells the story.

Police must be trained to use trauma-informed interviewing techniques, have access to state-of-the-art medical forensics and enough resources to conduct their investigations and work with community organizations and researchers to identify potential improvements to their practices.

Ontario Attorney General Yasir Naqvi recently launched a multi-pronged program to ensure that Crown counsel conducting sexual assault trials are well trained and supported. They have developed a best practices manual and will ensure that inexperienced lawyers are properly mentored. They are also collecting comprehensive data on all cases in order to see trends and respond as necessary.

Judges across Canada, especially those who have little experience with sexual assault cases prior to their appointment, are understandably nervous about whether their actions or decisions will come under media or other scrutiny. Judicial education programs are encouraging judges to examine their own beliefs and to learn more about sexual assault. All judges need to be familiar with cases where other judges have already acknowledged, for example, that victims of sex assault often feel responsible for not having done enough to prevent the attack, that a delayed disclosure standing alone has no probative value and that while post-event sexual contact with an alleged abuser seems to be inconsistent with an assault, such contact is not unusual. Why? Some women feel safer if they participate in the pretext of a friendly relationship and it helps avoid the label of fool, victim or poor sport. For others, contact is made to give the person a chance to redeem himself.

Complainant support and changes to police, Crown and judicial approaches to sexual assault cases are vitally important. However, sexual assault cases will continue to go wrong unless and until there is a seismic shift in defence culture.

Lord Henry Broughton famously asserted in 1820 that a lawyer knows but one person, his or her client, and recognizes that the duty “to save that client by all expedient means — to protect that client at all hazards and costs to all others, and among others to himself — is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any other.” Should a lawyer’s focus truly be as singular and uncompromising as Broughton asserts?

The Supreme Court of Canada has repeatedly held that a defendant’s right to full answer and defence in sexual assault cases is not absolute or unfettered. It exists together with other valid social interests, such as that wrongful behaviour should be denounced. It must be balanced with other constitutional rights, including gender equality and privacy, and be tempered by the recognition that all justice system participants should be treated respectfully. Law professors Elaine Craig, from the Schulich School of Law at Dalhousie University, and David Tanovich, from Windsor Law at the University of Windsor, both argue that any conduct by a defence lawyer that promotes or exploits discredited stereotypes — such as that women lie to cover up sexual activity, failure to raise a hue and cry suggests fabrication and failure to fight back is indicative of consent — violates a lawyer’s ethical duty not to act in a discriminatory manner.

The Supreme Court of Canada recently granted leave to appeal in Groia v. Law Society of Upper Canada. Various adjudicators described Groia’s attacks on opposing counsel during a long insider-trading prosecution as unfounded and relentless and said his persistent pattern of rude and improper conduct crossed the line from zealous protection of his client to professional misconduct. Groia will argue that a civility complaint adjudicated after the fact by a law society rather than a trial judge improperly fetters counsel’s ability to engage in vigorous advocacy and thereby infringes on an accused’s right to make full answer and defence.

Depending on the outcome in Groia, if Crown attorneys and judges are unwilling to check defence counsel who badger complainants or indulge in discriminatory stereotypes, we may see complainants or advocacy organizations making professional misconduct complaints to law societies. If Craig and Tanovich’s arguments on defence ethics prevail, sexual assault prosecutions may finally be transformed.

Karen Busby likes to write about sex, politics and religion. She is a law professor and director of the Centre for Human Rights Research at the University of Manitoba as well as author of Manitoba Queen’s Bench Rules. She can be reached at Karen_Busby@umanitoba.ca.